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2016 DIGILAW 662 (GUJ)

State of Gujarat v. Thakore Gandaji Hathaji

2016-03-23

G.B.SHAH, K.S.JHAVERI

body2016
JUDGMENT : K.S. Jhaveri, J. 1. Both the above Appeals are directed against the judgment and order of conviction and sentence dated 10.01.1997 passed by the learned Additional Sessions Judge, Mehsana, Camp : Patan in Sessions Case No. 100/1996 whereby the respondent was convicted for the offence punishable under Section363 of the Indian Penal Code and was sentenced to undergo simple imprisonment for one year and fine of Rs. 100/- and in default of payment of fine, simple imprisonment for 15 days. The respondent was also convicted for the offence punishable under Section 324 of the Indian Penal Code and was sentenced to undergo simple imprisonment for one year and fine of Rs. 50/- and in default of payment of fine, simple imprisonment for 7 days. However, the accused was acquitted from the offence punishable under Sections 376 and 511 of the Indian Penal Code, by giving him the benefit of doubt. The sentences were ordered to run concurrently. The accused was given set off for the period undergone in jail. 2. Criminal Appeal No. 155/1997 is preferred by the State for enhancement of sentence qua the accused whereas Criminal Appeal No. 156/1997 is preferred by the State against acquittal of the accused from the offences punishable under Sections 376 and 511 of the Indian Penal Code. 3. The case of the prosecution is as under:- 3.1. As per the complaint lodged by complainant - Prahladji Velaji Thakore, on 16.10.1995 at about 7.30 pm, his daughter aged 5 years went out to buy a packet of biscuit but did not return back. The complainant's brother-in-law Bhopaji, Bharatji and Dineshji went out in search of the minor girl. Meanwhile, niece of the accused - Sonal informed that the minor girl was taken by her uncle (the accused herein). Hence, the complainant and others went to the house of the accused. However, the house was found locked. When the complainant and others shouted from outside, the accused is alleged to have said that 'the complainant's daughter is not in the house'. Since the accused did not open the doors of his house, the complainant and others tried to open the door using force, because of which the door broke open. They all, then, went inside and saw the accused only in his underpants and under the cot, found the minor girl completely naked. Since the accused did not open the doors of his house, the complainant and others tried to open the door using force, because of which the door broke open. They all, then, went inside and saw the accused only in his underpants and under the cot, found the minor girl completely naked. It is stated that blood was oozing out of the cheeks of the victim and the victim also had bite marks of the accused on her cheek. There were some swelling marks observed on the private parts of the victim and the victim had also passed stool. The victim was brought out of the house of the accused and she was taken to the Government Hospital at Patan and later shifted to the Mahesana Civil Hospital for treatment. The complainant lodged a complaint against the accused. Since the accused was not found then, he was declared as an absconder. The investigating officer recorded the statements of witnesses, carried out the panchnamas and also gathered the medical evidence. During this process, the accused was located, he was arrested was sent for medical examination. 3.2. At the end of the investigation, the chargesheet against the accused was led in the Court of the learned Judicial Magistrate First Class, who in turn, committed the case to the Sessions Court at Mahesana, it being Sessions triable. The trial Court framed the charge, to which the accused pleaded not guilty and claimed to be tried. 3.3. At the time of the trial, the prosecution examined the following witnesses:- Particulars Exh. PW 1 – Ramanbhai Baldevbhai 7 PW 2 – Dr. Kantilal Madhabhai Parmar 9 PW 3 – Dr. Mansangbhai Lavjibhai 11 PW 4 – Dr. Kantilal Ishwarlal Patel 13 PW 5 - Panch Ishwarbhai Amthidas Patel 15 PW 6 – Complainant Prahladji Velaji 18 PW 7 – Bhopaji Pratapji 20 PW 8 – Panch Amrutbhai Hirabhai 21 PW 9 – Panch Harisinh Juhaji 24 PW 10 – Panch Sushilaben Maganbhai 26 PW 11 – Sonalben Vajesinh 28 PW 12 – Chelaji Virsanghji 29 PW 13 – Sahebka Aladkhan 30 PW 14 – Hedubhai Hemrajbhai Chaudhary 32 PW 15 – Kanjibhai Dhanjibhai Chauhan 44 The prosecution also relied upon various documentary evidences, some of them are:- Particulars Exh. Depute order for registration of offences 31 Complaint of Thakore Prahladji Velaji 19 Panchnama of the scene of offence 22 Panchnama of the position of body of victim 23 Panchnama of the position of body of the accused 16 Medical certificate of the victim (chanasma) 12 Medical certificate of the Gandaji Hataji 14 Medical certificate of the victim, (Patan Hospital) 8 Birth certificate of the victim 27 Receipt for the muddamal received by the FSL 35 Forwarding letter of the FSL 38 FSL Report 39 Seriological Report 40 Advertisement regarding the absconding accused 33 3.4. At the end of the trial, further statement of the accused under Section 313 of the Code of Criminal Procedure was recorded in which the accused pleaded not guilty and stated that he has been falsely implicated in the offence. Thus, after recording the further statement of the accused and hearing the arguments of both the sides, the learned Additional Sessions Judge passed the above judgment and order. Being aggrieved by the same, the present appeals have been filed, as aforesaid. 4. Learned Additional Public Prosecutor Ms. Shruti Pathak has taken this Court to the evidence of the complainant and the other persons who had accompanied the complainant when they went to the residence of the accused. Ms. Pathak has also taken this Court to the opinion given by the Medical Officer, General Hospital, Mahesana qua the examination of the accused and has stated that the same is self-explanatory. It is further submitted that the accused herein had kidnapped the minor child and then committed rape and thereby, committed the offences as stated above. It is also submitted that when the complainant and his family members went to look for the child, on their shouting, from the locked house of the accused, the accused said that the victim - child was not in his house and when they broke open the door, they found the victim in a naked state right from the house of the accused. Therefore, also looking to the conduct of the accused, it is submitted that this is a fit case which requires interference of this Court and the judgment and order of the learned Judge be upturned qua the acquittal of the accused and the appeal of the state for enhancement of sentence be also entertained. 5. Learned Counsel for the accused Mr. 5. Learned Counsel for the accused Mr. Pratik B. Barot has taken this Court to the judgment and order of the learned Additional Sessions Judge and has submitted that there are no ingredients qua the accused for the offence punishable under Section 376 of the Indian Penal Code. It is further submitted that the learned Sessions Judge has given cogent and convincing reasons to arrive at the acquittal for the offence punishable under Section 376 of the Indian Penal Code and conviction for the offences punishable under Sections 363 and 324 of the Indian Penal Code of the accused and therefore, no interference is required at the hands of this Court. 6. We have heard learned Advocates appearing for the respective parties and perused the records of the case. At this stage, it would be relevant to refer to provisions of Sections 363, 366 and 376 of the Indian Penal Code, which reads as under:- "363. Punishment for kidnapping:- Whoever kidnaps any person from [India] or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. XXX XXX XXX 366. Kidnapping, abducting or inducing woman to compel her marriage, etc. - Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; [and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely she will be, forced or seduced to illicit intercourse with another person shall be punished as aforesaid]. XXX XXX XXX 376. XXX XXX XXX 376. Punishment for rape:- (1) Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the woman raped is his own wife and is not under twelve years of age, in which cases, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years. (1) Whoever: (a) Being a police officer commits rape-- (i) Within the limits of the police station to which he is appointed; or (ii) In the premises of any station house whether or not situated in the police station to which he is appointed; or (iii) On a woman is his custody or in the custody of a police officer subordinate to him; or (b) Being a public servant, takes advantage of his official position and commits rape on a woman is custody as such public servant or in the custody of a public servant subordinate to him; or (c) Being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a woman's or children's institution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution; or (d) Being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or (e) Commits rape on a woman knowing her to be pregnant; or (f) Commits rape when she is under twelve years of age; or (g) Commits gang rape, Shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years." 7. No Appeal has been preferred against the conviction of the accused herein. Considering the medical evidence on record and the evidence led by the other witnesses, it is not in dispute that it was the accused who had committed the alleged acts and further, the minor child was found from the house of the accused. Under the circumstances, when the offence punishable under Section 363 of the Indian Penal Code is proved by the prosecution beyond reasonable doubt and the trial court also has convicted the accused for the said offence, in the opinion of the Court, the sentence awarded to the accused, appears to be inadequate and lesser. Under the circumstances, when the offence punishable under Section 363 of the Indian Penal Code is proved by the prosecution beyond reasonable doubt and the trial court also has convicted the accused for the said offence, in the opinion of the Court, the sentence awarded to the accused, appears to be inadequate and lesser. Moreover, recently, it has been held by the Hon'ble Apex Court in the decision in the case of Raj Bala v. State of Haryana and Others etc. in Criminal Appeal Nos. 1049 to 1050 of 2015, decided on 18.08.2015, in paragraphs 1 and 2 as under:- "1. In Gopal Singh v. State of Uttarakhand, while focusing on the gravity of the crime and the concept of proportionality as regards the punishment, the Court had observed:- "Just punishment is the collective cry of the society. While the collective cry has to be kept uppermost in the mind, simultaneously the principle of proportionality between the crime and punishment cannot be totally brushed aside. The principle of just punishment is the bedrock of sentencing in respect of a criminal offence. A punishment should not be disproportionately excessive. The concept of proportionality allows a significant discretion to the Judge but the same has to be guided by certain principles. In certain cases, the nature of culpability, the antecedents of the accused, the factum of age, the potentiality of the convict to be come a criminal in future, capability of his reformation and to lead an acceptable life in the prevalent milieu, the effect - propensity to become a social threat or nuisance, and sometimes lapse of time in the commission of the crime and his conduct in the interregnum bearing in mind the nature of the offence, the relationship between the parties and attractability of the doctrine of bringing the convict to the value based social mainstream may be the guiding factors. Needless to emphasise, these are certain illustrative aspects put forth in a condensed manner. We may hasten to add that there can neither be a straitjacket formula nor a solvable theory in mathematical exactitude. It would be dependent on the facts of the case and rationalised judicial discretion. Neither the personal perception of a Judge nor self-adhered moralistic vision nor hypothetical apprehensions should be allowed to have any play. For every offence, a drastic measure cannot be thought of. It would be dependent on the facts of the case and rationalised judicial discretion. Neither the personal perception of a Judge nor self-adhered moralistic vision nor hypothetical apprehensions should be allowed to have any play. For every offence, a drastic measure cannot be thought of. Similarly, an offender cannot be allowed to be treated with leniency solely on the ground of discretion vested in a court. The real requisite is to weigh the circumstances in which the crime has been committed and other concomitant factors which we have indicated hereinbefore and also have been stated in a number of pronouncements by this Court. On such touchstone, the sentences are to be imposed. The discretion should not be in the realm of fancy. It should be embedded in the conceptual essence of just punishment." [Emphasis added]. 2. Seven years prior to that, in Shailesh Jasvantbhai v. State of Gujarat, it has been held that:- "7. The law regulates social interests, arbitrates conflicting claims and demands. Security of persons and property of the people is an essential function of the State. It could be achieved through instrumentality of criminal law. Undoubtedly, there is a cross-cultural conflict where living law must find answer to the new challenges and the courts are required to mould the sentencing system to meet the challenges. The contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a cornerstone of the edifice of "order" should meet the challenges confronting the society. Friedman in his Law in Changing Society stated that: "State of criminal law continues to be - as it should be - a decisive reflection of social consciousness of society." Therefore, in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. By deft modulation, sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. 8. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. 8. Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law, and society could not long endure under such serious threats. It is, therefore, the duty of every Court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed, etc. This position was illuminatingly stated by this Court in Sevaka Perumal v. State of T.N." [Emphasis supplied] And again:- "The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and the victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society's cry for justice against the criminal". Accordingly, the learned trial Judge has committed an error in inflicting the lesser punishment, which requires to be interfered with. 7.1. We are also of the view that in the facts and circumstances of the case, Section 354 of the Indian Penal Code would apply against the accused which reads as under:- "354. Assault or criminal force to woman with intent to outrage her modesty.--Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both." 7.2. Accordingly, the Appeals filed by the State for enhancement as well as against acquittal required to be partly allowed and the impugned judgment and order is accordingly required to be modified. 8. In the result, the above Appeals preferred by the State are partly allowed. Accordingly, the Appeals filed by the State for enhancement as well as against acquittal required to be partly allowed and the impugned judgment and order is accordingly required to be modified. 8. In the result, the above Appeals preferred by the State are partly allowed. While confirming the conviction, the sentence imposed on the accused under Section 363 of the Indian Penal Code is enhanced from one year simple imprisonment to rigorous imprisonment of five years. The accused is also convicted for the offence punishable under Section 354 of the Indian Penal Code and he is sentenced to undergo rigorous imprisonment for two years with a fine of Rs. 500/-, and in default of payment of fine, simple imprisonment for one month. The conviction of the accused is maintained qua Section 324 of the Indian Penal Code. The fine and in default punishment remains unaltered. All the sentences to run concurrently. The period of sentence already undergone shall be considered for remission and set off in accordance with law. The accused shall surrender before the jail authorities on or before 1st JULY, 2016 to serve the remaining period of sentence as awarded by this Court, failing which, the jail authorities shall take appropriate steps in accordance with law. Bail bond, if any, of the accused stands cancelled. Record and proceeding be sent to the concerned Trial Court forthwith.